Ninth Circuit rejects Chamberlain places DMCA back on a proper track

In 2004, in the Chamberlain case, the Federal Circuit unaccountably grafted a non-statutory element on the access control provisions of the DMCA, requiring that there be some connection to preventing infringement for there to be protection against circumvention of a technology control on access to a copyrighted work. The Ninth Circuit, in the MDY case, expressly rejects Chamberlain, returning the statute to its intended purpose – creating a right to protect controls on access to works in digital contexts.

Chamberlain was and remains bad law and invokes bad policy. While followed within the Federal Circuit, it is not widely followed elsewhere. It was explicitly rejected by the Ninth Circuit in MDY Industries, LLC v. Blizzard Entertainment. Inc., 2010 WL 5141269 (9th Cir. 2010). The statute itself could scarcely be clearer. It proscribes circumventing a device that effectively controls access to a copyrighted work (17 USC 1201(a)(1) and, in separate sections proscribes trafficking in deices that enable such circumvention and trafficking in devices that enable circumvention of devices that protect rights created under copyright law. It is this last section that deals with a link between protecting the technology and a risk of infringement, not the first two, as Chamberlain would have us believe.

MDY involved a DMCA trafficking claim against a company that sold software bots that enabled users to play a popular online game automatically, without being present. Unlike the court in Chamberlain, the MDY court recognized the importance of the statutory distinction between access control and rights protection technology, specifically Chamberlain. The ability to assert legal rights to enforce controls on access comprises a new, independent form of protection (the right to prevent circumvention of access controls) given to a copyright owner to encourage distribution and offer protection for works distributed in digital form. Given the statutory framework, this is clearly the only way properly to interpret Section 1201 – as an additional form of protection not connected to copyright infringement.

The court cited four statutory textual differences between the access provision and the rights protection provision that compelled this result. The most telling is that § 1201(a)(2) prohibits the circumvention of a measure that “effectively controls access to a work protected under this title,” whereas § 1201(b)(1) concerns a measure that “effectively protects a right of a copyright owner under this title in a work or portion thereof.” The court read § 1201(b)(1) to reinforce copyright owners' traditional exclusive rights under § 106 by granting them an additional cause of action. Sections 1201(a)(1) and (a)(2), however, use the term “work protected under this title”, the subsection creates a new right distinct from the exclusive rights established under traditional copyright law.

The court also referenced the legislative history of DMCA, including the following comments by the Senate Judiciary Report:

[I]f an effective technological protection measure does nothing to prevent access to the plain text of the work, but is designed to prevent that work from being copied, then a potential cause of action against the manufacturer of a device designed to circumvent the measure lies under § 1201(b)(1), but not under § 1201(a)(2). Conversely, if an effective technological protection measure limits access to the plain text of a work only to those with authorized access, but provides no additional protection against copying, displaying, performing or distributing the work, then a potential cause of action against the manufacturer of a device designed to circumvent the measure lies under § 1201(a)(2), but not under § 1201(b).

The court discussed Chamberlain extensively, rejecting its reinterpretation of the statute. As to the Chamberlain analysis, the court commented:

While we appreciate the policy considerations expressed by the Federal Circuit in Chamberlain, we are unable to follow its approach because it is contrary to the plain language of the statute. In addition, … its approach is based on policy concerns that are best directed to Congress in the first instance, or for which there appear to be other reasons that do not require such a convoluted construction of the statute's language.

MDY set out the right standard for when an access device is circumvented in separating 1201(a) from any relationship to the risk or actuality of infringement.

The Chamberlain court reasoned that if § 1201(a) creates liability for access without regard to the remainder of the Copyright Act, it “would clearly affect rights and limitations, if not remedies and defenses.”. This perceived tension is relieved by our recognition that § 1201(a) creates a new anti-circumvention right distinct from the traditional exclusive rights of a copyright owner. It follows that § 1201 (a) does not limit the traditional framework of exclusive rights created by § 106, or defenses to those rights such as fair use. We are thus unpersuaded by Chamberlain's reading of the DMCA's text and structure.